Friday, July 25, 2003

As noted here, the Virginia Supreme Court has granted the petition for appeal in the Jody Gent murder case. Gent was sentenced in 2001 to 56 years in prison upon being convicted of robbing and murdering an elderly woman in Wise County, as reported here in the Coalfield Progress. Gent's conviction was affirmed by the Court of Appeals.

This article describes (without mentioning anything about Bristol) why municipalities in other parts of the country are leading the way in fiber-to-the-home projects that carry highspeed data, voice, and video services.

A City of Richmond council member has been arrested by the FBI on charges that she took a bribe of "$2,000 to support a candidate vying to fill the vacant 6th District Council seat," according to this AP report. The Richmond Times-Dispatch has this report.

The Daily Progress has this report on the views of an 83 year-old electoral board member in Albemarle County who dislikes the Attorney General's conclusion that he can no longer volunteer to work on political campaigns.

The AP has this report and the Richmond Times-Dispatch has this report on the arguments for and against the Virginia Housing Development Authority's rule denying home mortgage loans to joint applicants unless they are "related by blood, marriage or adoption or by legal custodial relationship."

UPDATE - The Richmond paper reports here and the AP reports here that VHDA voted on Friday to eliminate the family rule.

Ferrum College, located in Franklin County, has taken the apparently unprecedented step of acknowledge some responsibility for the suicide of one of its students, according to this report in the Roanoke Times, which says that the college "has acknowledged that 'errors in judgment and communication by school personnel' were partly responsible for the suicide of one of its students more than three years ago, in what is believed to be the first time an American college or university has made such an acceptance of responsibility." The AP has this report.

I'm not sure that analysis applies in the same way to a small-town lawyer like myself as it might to high-powered big-firm lawyers like Howard in Philadelphia and Denise in Los Angeles, and even so I suspect that their blogs are actually among the greatest legal marketing achievements of all time - as evidenced by yet another blogging article sent nationwide with their names in it.

Thursday, July 24, 2003

In O'Brien v. Appomattox County, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael and King and District Judge Wooten affirmed the district court's decision to preliminarily enjoin the County from enforcing its ordinance prohibiting farmers from applying biosolids to their land in the County.

The opinion notes:

"In light of the widespread use of biosolids in Virginia and elsewhere in the United States, the regulations and examinations undertaken by the Virginia General Assembly and the United States Environmental Protection Agency ("U.S. EPA"), and the studies by the scientific community, the fear of possible, adverse health effects is too attenuated at this time to outweigh the likelihood of harm to the Farmers."

In addition, the District Court had the benefit of what both the Virginia Supreme Court and the Virginia General Assembly have to say on the authority of counties over the use of biosolids:

"the District Court reviewed the Virginia Supreme Court’s decision in Blanton v. Amelia County, the legislation enacted by the Virginia General Assembly limiting the role of counties in regulating biosolids, and the effect of these ordinances on landapplication of biosolids. In light of the recent decisions by the Virginia Supreme Court and the Virginia General Assembly, we cannot conclude that the District Court erred in determining that the claims and evidence provided by the Farmers raise such serious, substantial, and difficult issues that they warrant more deliberate investigation."

This Richmond Times-Dispatch article says that the offices of future gubernatorial candidates Tim Kaine and Jerry Kilgore are swapping accusations over whose fault it is that the Virginia Department of Environmental Quality has not done more to enforce the environmental laws with regard to a landfill in Page County.

The Richmond Times-Dispatch has this article on the latest vote by the telecom tax reform committee of legislators, headed by Delegate Preston Bryant. The committeeis proposals include the following:

"The panel agreed to call for reduced consumer confusion, consolidated taxes, uniform taxes statewide, a reduced tax rate on most Virginians, competitively neutral taxes, preserved state and local revenue and establishing a single tax collection and distribution point.

The proposals call for repeal of local consumer utility taxes on telecommunications, local gross-receipts taxes paid by consumers, the Virginia relay fee for services to the deaf, the cable-franchise fee and the current E-911 tax structure. Some taxes vary from locality to locality.

In their place, the proposed plan would impose a 4.5 percent statewide sales tax on communications and video services and a E-911 fee on wireless and wireline phones not to exceed 75 cents per month compared with the current $3 monthly maximum."

The demise of cable franchise fees and other moneymakers for localities will draw heavy opposition from cities and counties.

The Washington Post has this profile on Judge Gerald Bruce Lee of the E.D. Va., who recently overturned a jury verdict in a federal "kidnapping" case and told prosecutors the case should never have been brought in federal court.

As reported here, the Federal Energy Regulatory Commission ("FERC") has denied the petition for rehearing of some Southwest Virginia landowners regarding Dominion Resources' Greenbriar pipeline project, which is being constructed between West Virginia and North Carolina and passes under the New River in Virginia.

The Roanoke Times reports here that election officials are critical of the Attorney General's recent opinion that state law prohibits registrars and members of electoral boards from holding any kind of political party office. In Virginia, the electoral board for each city and county is made up of a majority of members who are of the same party as the governor, a minority of its members are of the other party - and so, only party activists ever get appointed to electoral boards.

In the latest Joe Kennedy column in the Roanoke paper, he exposes the bizarre characterizations of Roanoke by the national medial particularly in the wake of the recent visit by presidential candidate Bob Graham of Florida.

Wednesday, July 23, 2003

In Wilson v. Kittoe, the Fourth Circuit in an opinion by Judge King joined by Judges Michael and Traxler rejected the police officer defendant's qualified immunity appeal, in a case where the officer was trying to arrest a guy for drunk driving and the guy's neighbor, a lawyer, wakes up, comes out, starts trying to help out the guy getting arrested with some gratuitous legal advice, and winds up riling the officer enough to get arrested himself, under Virginia's "obstruction" statute, Va. Code 18.2-460.

I guess that between this Wilson case and the case of Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001), it is clearly established that law enforcement officials should not arrest Virginia lawyers at their homes for obstruction of justice unless the lawyers do something more than to exercise their constitutional right to refuse to shut up.

The Petersburg paper has this report and the Richmond Times-Dispatch has this report on a civil rights lawsuit brought by a Wiccan seek a court order allowing her to open the meetings of the Chesterfield County board of supervisors with Wiccan prayers.

I thought this article and the comments attached to it were hilarious - as I understand it, if Microsoft steals someone else's technology, puts it in their software, and sells you a license, it is now agreeing to indemnify the software purchaser for attorneys' to defend the suit.

What's this feature worth? I doubt that it gets a big footnote in the MS financial statements.

The Washington Post has this story and the AP had this story on the execution last night of Virginia inmate Bobby Wayne Swisher, "six years after he kidnapped and raped a young mother before slashing her throat and tossing her, still alive, into the frigid waters of the South River."

In Jones v. Virginia Oil Co., Inc., the Fourth Circuit in a per curiam decision for the panel of Judges Michael and Motz and Senior Judge Beezer from the Ninth Circuit affirmed the decision by Judge Moon of the W.D. Va. to grant summary judgment for the employer in an overtime case, concluding that the facts showed that the plaintiff's employment was within the "bona fide executive" exemption under the "short test," where the plaintiff was an assistant manager at a combination Dairy Queen and convenience store.

I must say, though, that I read these other "state" blogs not because but in spite of their "geographic" themes - Marcia Oddi's Indiana blog, for example, is chock full of interesting stuff, separate and apart from the Indiana law.

Tuesday, July 22, 2003

The Washington Post reports here that Judge Gerald Bruce Lee of the E.D. Va. has granted a defense motion to dismiss the federal kidnapping charges against Jay Lentz, after a jury found him guilty (despite no body ever being found). The judge criticized the U.S. for making a federal case of an ordinary murder prosecution.

As reported here, the Virginia Court of Appeals will rehear this split panel decision that overturned, based on the First Amendment, a stripper's conviction for violating public nudity laws in Henrico County. Here is my earlier post on the case.

The case makes me recollect Judge Bork's comments at last year's Fourth Circuit judicial conference, where he said something like nude dancing at a high school graduation might be protected by the First Amendment, unless it was the Dance of the Seven Veils, which would have an impermissible religious connotation - I guess making fun of the fact that nude dancing gets much more constitutional protection than does prayer in schools.

Just when Senator Hatch was starting to come around on ABA ratings (since they liked Miguel Estrada), the Richmond Times-Dispatch reports here that the American Bar Association gave Fourth Circuit nominee Claude Allen only a "qualified" rating, in a split decision, with some voting that he was "not qualified." By contrast, the ABA committee

The members of the ABA's Standing Committee on the Federal Judiciary are listed here. In this term of Congress, as shown here, other findings of the Committee included: that Allyson Duncan, nominated for the Fourth Circuit, and Glen Conrad, nominated for the W.D. Va., were "well qualified," and that Judge Terence Boyle nominated for the Fourth Circuit and Judges Thomas Varlan and Ronnie Greer of the E.D. Tenn. were "qualified," with some members contending that Varlan was "not qualified." I believe all but Judge Boyle and Mr. Allen have been confirmed by the Senate.

Besides Allen and Boyle, the committee also gave only "qualified" ratings in this Congress to appeals court nominees Deborah Cook, Jeffrey Sutton, Timothy Tymkovich, and William Pryor, all of which suggests that politics (rightly or wrongly) is still part of the measuring stick applied by the committee.

In convicting defendants accused of defrauding the IRS by seeking and obtaining bogus refunds of $500,000 for slavery reparations, a federal jury declared that the IRS is incompetent and should never have allowed taxpayer money to be paid out by mistake to these kinds of characters, as reported here in the Richmond Times-Dispatch (via VLW).

There's cable, DSL, satellite, fixed wireless, and fiber optic - all ways of getting "broadband" to your home or office, and so why does the FCC treat them so differently? That's the question before a House committee today dealing with telecommunications, as described in this article from the Mercury News. (Of course, not everyone agrees that cable modems and DSL provide true "broadband.")

InsideUVa has this article on "decentralization" in funding for the University (written by my old University Journal comrade Dan Heuchert) and this account of the efforts of the law school and graduate business school at the University of Virginia to operate without any money from the Commonwealth.

The legislators ought to feel embarrassed every time they think about this, that two of the best graduate programs in the country decided that they would sooner be essentially private than subject themselves to the non-support of the General Assembly. Instead of operating to showcase what Virginia can do in public education, these programs show instead that the best plan for success is to have as little as possible to do with Virginia's politicians.

Monday, July 21, 2003

In U.S. v. James, the Fourth Circuit in an opinion by Judge Gregory joined by Judges Neimeyer and Shedd concluded that the defendant's conviction under South Carolina state law for "failure to stop for a blue light, S.C. Code Ann. § 56-5-750" was properly considered a "violent felony" for purposes of the armed career criminal enhancement under federal sentencing law.

Apparently, failure to stop for a blue light does not involve an inadequate response to an in-store sales promotion at K-Mart.

In Cohen v. USEC, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer and Shedd and District Judge Spencer of the E.D. Va. affirmed the dismissal of plaintiffs' securities claims as barred by the one-year statute of limitations, and remanded the case for further consideration of the issue of sanctions under Rule 11.

In U.S. v. Geraci, the Fourth Circuit in a per curiam decision for the panel of Judges Luttig, Niemeyer, and Michael upheld the constitutionality of the 18 U.S.C. 2244(a)(1) as applied to the defendant, rejected her claim that she was entitled to a pre-trial evidentiary hearing on the admissibility of a child's testimony, and rejected the defendant's arguments about the admissibility of hearsay testimony used against her at trial.

The U.S. District Court for the E.D. Tennessee earlier this month gave this notice of a proposed rule change, that would require the redaction of certain personal information from documents that are filed and subject to public access.

This rule seems to anticipate the increased ease of access court documents that will result from electronic filing, which I understand will soon be a reality in our federal courts on both sides of the line.

In Khaliq v. Angelone, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Gregory and Traxler rejected the equal protection claims of state inmates housed in the Albemarle Charlottesville Regional Jail.

The Court noted that "Appellants had no federal right to be housed in any particular state facility, or in a state corrections facility as opposed to a local jail compensated by the state for the cost of incarcerating state inmates pending their transfer to an available and appropriate space within a state facility."

In addition, the Court agreed the justifications for the differing treatment could withstand the minimal constitutional scrutiny required, as "Appellants’ allegations, if proven, fail to establish that their imprisonment in the ACRJ was irrational, arbitrary, or otherwise not in furtherance of a legitimate penological interest."

I have heard about but never saw until now this opinion by Magistrate Judge Edgar in the case of the Americans with Disabilities Act lawsuit brought on behalf of a little girl with disabilities who wanted to keep her miniature horse in town, over the town's refusal to permit the horse where the little girl lives. (The Court granted the town's summary judgment motion.)

Via Virginia Lawyers Weekly, this story in the Richmond Times-Dispatch describes a hearing before Judge Richard Williams of the E.D. Va., involving the representation of a defendant in a criminal tax case, and his decision to represent himself. Among the highlights:

"Foster, who was wearing a T-shirt bearing the inscription, "40 Acres and a Bentley," gave the judge some unorthodox and unresponsive answers, most of which Williams listened to with uncharacteristic patience.

"I'm telling you that you are committing a criminal offense. . . . I understand that God is my witness and he will judge you and anybody else that is committing these offenses," Foster said.

"God is my representative, let's make that clear, OK?" he said at another point. A moment later, he said "indigenous lawyer Drew Sharref El" is his attorney.

"It's a disgrace for me to even be standing here in this courtroom," he said still later. "I have no respect for you or this so-called . . . ." When Foster paused, Williams simply asked another question.

After Williams had ruled that he could represent himself, Foster had still another comment.

"Let me tell you something," Foster told the judge. "You are the devil. You are the devil."

According to this article in the Washington Post, people of all parts of the Commonwealth think that U.Va. discriminates against them an in favor of the people from the other parts of the state. The University admissions people denied that it considers diversity of geography from within Virginia in making admissions decisions.

In Starpower Communications, LLC v. FCC, the D.C. Circuit affirmed the FCC's application of Virginia contract law to the agreement between Verizon and the CLEC Starpower regarding interconnection fees for telephone calls made to dial-up Internet service providers.

In terms of procedural history and choice of law rules, the Court explained the complications of litigating an interconnection agreement:

"In 1999 Starpower filed petitions with the [Virginia State Corporation Commission] seeking declarations requiring Verizon to pay for ISP-bound traffic under the two agreements. The VSCC declined jurisdiction in favor of the Commission. See 47 U.S.C. § 252(e)(5). Starpower then petitioned the Commission to preempt the jurisdiction of the VSCC and, when the Commission did so, Starpower filed a complaint with the Commission charging that Verizon had violated the agreements by failing to pay reciprocal compensation for ISP-bound traffic.

Because it stood in the shoes of the VSCC, the Commission was obliged to apply the contract law of Virginia, including the rule that "where the terms of the contract are clear and unambiguous, we will construe those terms according to their plain meaning." Starpower Communications, LLC v. Verizon Virginia, Inc., 17 FCC Rcd. 6873 ¶ 24 (2002) ("Order") (citing American Spirit Ins. Co. v. Owens, 261 Va. 270, 275, 541 S.E.2d 553, 555 (2001))."

Nothing is ever easy for CLECs looking to enforce their rights against the ILECs.

Sunday, July 20, 2003

The Roanoke Times has this great article about how 1 out of every 100 voters in Craig County, Virginia, are now running for some kind of county office, which means that either they are a truly public-spirited bunch or maybe they just want better parking places at the county office building.

Laurence Hammack picks apart the prosecution's evidence in this article in the Roanoke Times about the upcoming federal murder trial of David Rice, who is accused of murdering two women in the Shenandoah National Park.

This article and this article in the Virginian-Pilot say that "[i]nsurance companies licensed to do business in Virginia can only underwrite group policies to cover family members defined as spouses or dependent children," and implying perhaps that this law is some kind of equal protection or due process violation.

This struck me as a very strange conclusion - if this is a legal problem, is state law to blame? My first guess about where to look for the answer to just about any employee benefits question would be to go to the federal tax law - to state the matter in terms as crude as my understanding of it, isn't the whole deal with group health insurance about taxes? And taxes might be the real issue here, as suggested in this FAQ item from the IRS website, which says, among other things:

"Cafeteria plans can offer health insurance to employees, their spouses and their dependents. However, a same-sex domestic partner can never be deemed to be a spouse. See Defense of Marriage Act, Public Law 104-199. . . . The domestic partner and dependents in this case may not be participants in a cafeteria plan because they are not employees, but the plan may provide benefits to them. . . . If the domestic partner and his or her child do not qualify as the employee's dependents, those individuals may receive coverage under the cafeteria plan on a taxable basis. This means that the fair market value of the coverage for the domestic partners and his or her child must be included in the employee's wages for purposes of income tax withholding, FICA and FUTA taxes. See question and answer 65 from Chief Counsel Advice 200117038."

This snippet of knowledge (regarding a local government plan, which might make a difference, I don't know) makes me wonder if the reporting of this story is a bit off the mark. Maybe the gurus at BenefitsBlog, Tax & Biz, or A Taxing Blog know more. The article says this issue is made timely by the Supreme Court ruling on sodomy, which might be true, as evidenced perhaps by discussion such as this and this and this (and all those that preceded them) from Eugene Volokh, not to mention the recent call for divine reform of the Supreme Court from the Tidewater's own Dr. Pat Robertson.

Lessig & Scanlon of the Daily Press report here, among other things, that in the race for the Republican nomination for Attorney General of Virginia, to be decided in the year 2005, Steve Baril from Richmond has drawn abreast of Del. Robert McDonnell of Virginia Beach in terms of fundraising.

The article notes that Baril is "trying to tap into a segment of the party which is perhaps best described as Mark Warner Republicans - the so-called Main Street business leaders who fled the GOP in 2001 to help Warner win the governor's mansion."

This interesting article from the Sacramento Bee notes that anti-Pledge of Allegiance litigant Michael Newdow and the American Law Institute both are arguing against the continued application of the "best interests of the child" test.

The article says that ALI "recommends substituting an 'approximation' test. Custody would reflect the approximate actual division of parental responsibility before a family splits apart." One expert cited in the article "suggests custody be awarded by a coin toss because 'there usually is no rational basis for preferring one parent over another.' He argues flipping a coin would be preferable to having judges evaluate parents' intrinsic worth, as under the current system. He says it also would give both parents an equal chance and reduce the harm that constant litigation does to children."

I myself have litigated exactly one (temporary) custody matter, and lost, and what a terrible day that was. The dispute involved what might be a common scenario - one side had money, the other side had a lifelong bond with the child. The judge, a good and fair man, sided with the money. His ruling did not make much difference in the end, the parties "worked things out" after the hearing, as there was no animosity between them, only a very genuine disagreement about what was in "the best interests of the child."

Another commentary in the Washington Post criticizes the Fourth Circuit's conclusion in the case involving Yaser Esam Hamdi, an "enemy combatant" held in Virginia. On July 9, the Court voted 8-4 to deny rehearing in the case, but the commentary notes "the vigor of the dissents, which came from an ideologically eclectic group of the court's judges, unified less by their sense of how the case should be resolved than by a laudable insistence on acknowledging the true stakes for liberty that it presents." The dissenters included Judges Motz and Luttig.